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In 1994 an imposter opened several accounts on Prodigy in the name of Alex Lunney, a boy scout. Then he (or she) sent a vulgar message to a scoutmaster with the subject line “HOW I’M GOING TO KILL U.” The recipient notified the Bronxville police and Lunney’s scoutmaster. Their investigation determined that Alex had nothing to do with the message.

While the investigation was proceeding, Prodigy notified Lunney it was terminating one of the accounts “due to the transmission of [pornographic and threatening] material through the Prodigy service and providing inaccurate profile information.” Lunney told Prodigy that it was not him. The company’s further investigation revealed other accounts in his name, which were also closed, and apologized to him.

Alex, by his father, sued Prodigy for defamation by e-mail, posting on bulletin boards, and negligence in opening the accounts. The Supreme Court (New York’s major trial court) denied Prodigy’s three motions for summary judgment; the Appellate Division reversed, and New York’s Court of Appeals granted Lunney leave to appeal.

In an opinion by Judge Rosenblatt, the high court affirmed the Appellate Division. As a threshold matter, the Court had to consider whether the messages were defamatory. It decided that for purposes of this opinion, although Lunney was not directly attacked, he "was defamed by being portrayed as the author of the foul materials."

After explaining what e-mail is, the Court applied New York’s common law and established tort principles to the defamation action. "Although they were fashioned long before the advent of e-mail, these settled doctrines accommodate the technology comfortably, and with apt analogies." More specifically it noted:

“

Prodigy’s role in transmitting e-mail is akin that of a telephone company, which one neither wants or expects to superintend the content of a subscribers’ conversations. In this respect, an ISP, like a telephone company, is merely a conduit. Thus, we conclude that under the decisional law of this State, Prodigy was not a publisher of the e-mailtransmitted through its system by a third party.

The Court noted that some bulletin board operatorsposted messages instantly; “others significantly delay posting to allow their operators an opportunity to edit the message or refuse posting altogether.” Plaintiff argued that since Prodigy reserved, in its membership agreement, broad editorial discretion to screen messages, it should be treated as a publisher. Prodigy argued that while it had the right to screen, it does not usually do so, and therefore, could not be the publisher of a message placed on the bulletin board by a third party.

The Appellate Division “aptly concluded,” said the high court, that even if Prodigy had exercised its power to delete vulgarities from bulletin boardposting, it was still passive in “the millions of other messages in whose transmission it did not participate.” The Court of Appeals declined to “hypothesize whether there may be other instances in which the role of an electronic bulletin board operator would qualify it as a publisher.”

Lunney also claimed that Prodigy was negligent by not using more care to prevent imposters from opening accounts, saying that ISPs should have a way of verifying the “bona fides” of all applicants and the credit card they use. Prodigy pointed out that this approach would require ISPs to investigate millions of potential subscribers, and to become guarantors against harmful transmissions. The court sided with Prodigy, saying:

“

The rule plaintiff advocates would, in cases such as this, open an ISP to liability for the wrongful acts of countless tortfeasors committed against countless potential victims. There is no justification for such a limitless field of liability.

The court declined to consider Prodigy’s request to rule that it was protected by the Communications Decency Act of 1996, saying the “case does not call for it.” Judge Rosenblatt’s opinion concluded with the following comment which might well be applied to many matters in Internet litigation:

“

We recognize . . . that parties to a lawsuit, and surely others interested in the field, will look to decisions for points of guidance. For every new rule that a court sets down doubts are minimized, and practitioners are able to give counsel based on settled doctrines, rather than on open questions. While many decisions serve to establish rules that advance predictability, courts cannot go beyond the issues necessary to decide the case at hand. An ambition of that sort would entail something very much like drafting advisory opinions. Misdirected or misapplied, they can create the very kind of uncertainty, or confusion, that purposeful decisional law seeks to eliminate. These general observations apply even more compellingly when dealing with Internet law. Given the extraordinarily rapid growth of this technology and its developments, it is plainly unwise to lurch prematurely into emerging issues, given a record that does not at all lend itself to their determination.